After the fast track: what next for the detention of asylum seekers?

UK courts have ruled the routine detention of asylum seekers undergoing accelerated claims to be ‘systemically unfair and unjust’. But faced with hostile politics, how much can strategic litigation deliver?

Last month, my organisation Detention Action’s legal challenge to the Detained Fast Track asylum process came to an end. After almost three years of litigation, a dozen hearings, two Court of Appeal rulings and a good deal of angst, it came down to a single A4 side of paper from the Supreme Court.

Permission to appeal denied. The Lord Chancellor’s appeal raises no arguable point of law. We win.

If the pervading feeling was relief, it was because partly because much had already been celebrated. We celebrated that extraordinary day when theMinister finally suspended the operation of the Detained Fast Track altogether. No longer would people seeking asylum in the UK be taken straight to high security detention-centres and given impossible deadlines to make and evidence their case for protection.

Before that, we celebrated when the Court of Appeal overruled the High Court and suspended the appeals process within the Fast Track. That was the moment when the people we were working with in detention began to be released. Initially, in twos and threes. Then, in increasing numbers. Finally, in such numbers that, apparently, there were not enough staff in Harmondsworth immigration detention centre to notify everyone individually, and release lists began to be posted on the wall at the beginning of each day.

And we celebrated each of the legal victories which incrementally brought that day closer. We had spent years talking to people on the Fast Track, listening to their stories, always sad, often deeply disturbing. We listened, we sympathised, we sometimes told them about the campaign report we had published, and we explained that there was nothing we could do. It’s the Fast Track, you know.

No longer.

The Fast Track is dead, long live the Fast Track?

But after the euphoria, the question remains of where this leaves us. It is a question of the most pressing importance for the asylum-seekers of today and tomorrow. But it may also throw light on the value and limitations of strategic public interest litigation, that vexed territory where politics and the law frequently come into collision.

First, some limitations. Our litigation never aspired to end the detention of asylum-seekers altogether – and it has not done so. In common with almost every other EU state, the UK continues to detain asylum-seekers. The letterhead has changed: no more Detained Fast Track, now it is Detained Asylum Casework. For the person in detention, this is limited consolation.

Further, it is likely that something called the Detained Fast Track will return. The courts did not find that any Fast Track would be unlawful, just this one. The Home Office are likely to come back with a ‘DFT 2’, which seeks to address the Court of Appeal’s criticisms. This will take time, though, as the Court of Appeal struck at the judicial machinery, not just Home Office practice. Any DFT 2 will require that the relevant judicial bodies draw up, consult on and agree fresh rules governing the appeals process. The balance, between making it fast enough to meet the Home Office’s requirements for a Fast Track, and slow enough to address the findings of unlawfulness, will be tricky in the extreme.

But one can legitimately worry that this latest judgement will itself drift into the sands of bureaucratic adjustment. Certainly, there were times during our litigation when it seemed structurally impossible to make a decisive blow at this moving target. Each time the courts found unlawfulness, the Home Office adjusted their practice, granting a minimum of four days with lawyers before the initial interview, or moving to justify detention during the appeals process on the grounds of risk of absconding. The appeal rules are slower and tougher to fiddle with, but the question remains whether we will at some point find ourselves back where we started, contemplating fresh litigation with little prospect of real change.

A culture of impunity

I do not believe that this will be the case. The series of judgements, and the lengthy suspension of the process, leaves the detention of asylum-seekers permanently in a new world. There will doubtless be plenty more litigation, none of which will in itself close down the Fast Track, but much has changed.

To understand the nature of this change, we must remember just what was so bad about the old Fast Track. It was not just that asylum-seekers were detained. It was not just that they experienced injustices while they were there – unfortunately, injustice is not uncommon in the mainstream asylum system too, particularly with the decline of legal aid. The problem with the Fast Track was, in the words of the Court of Appeal, a matter of being ‘systemically unfair and unjust’.

The Fast Track was fundamentally different to the ad hoc asylum detention of most of the rest of the EU, in that it was a legal and bureaucratic structure that required the detention of a large (and growing) cohort of asylum-seekers. It was a structure that led ever more people, with ever more complex cases, increasingly involving histories of torture, rape or trafficking, to be routed through a system that restricted their time and space so as to make it often impossible adequately to present their cases for asylum. Even with a good case and a good lawyer, the system was geared towards refusing you and removing you.

The underlying problem was a culture of impunity. Previous case law, notably the European Court of Human Rights in a case called Saadi, had found the Fast Track to be lawful (just). The Home Office interpreted this as carte blanche to operate any detained accelerated procedure as they saw fit. Yet almost everything had changed from the process examined by the European Court: from the time-scales to the inclusion of the appeals process to the high security prison-style wings at Harmondsworth.

This culture of impunity meant advocacy on the Fast Track was impossible. Even on the most indefensible and easily resolved problem, the irrational delays without legal advice at the start of the process, we made no progress in lobbying officials, let alone ministers. The process generated the right outcome, quick removals, so there was no interest in examining the mechanism.

The person going through this system was in an impossible position. The obstacles preventing them from making their case properly were systemic, not individual. Yet the system had been ruled lawful, and no individual case raised all of the issues that would allow a fresh systemic legal challenge. A few people with good cases were granted asylum; some more were released from the Fast Track; the vast majority, strong cases and weak, were simply refused and removed.

A new era for immigration detention?

All that has changed. The Court of Appeal judgement cannot now be challenged: the Fast Track was systemically unfair. Whatever new system is developed, the Home Office will be, and will know itself to be, under constant legal scrutiny. A replacement DFT will have to be designed on this assumption. The onus will stay on the Home Office to demonstrate that its new processes are not unlawful. Individuals with a decent case and a decent lawyer should have a good chance of getting out.

Particularly as nothing yet indicates that the Home Office can address one of the most significant strands of the litigation. The suspension of the process was agreed as part of the settlement in the case of four vulnerable individuals, supported by the Helen Bamber Foundation, who were unlawfully processed and refused release on the Fast Track. The failure to identify, screen and protect vulnerable people has been an issue throughout the litigation. All the indications are that vulnerable asylum-seekers will continue to be wrongly detained, and will continue to bring legal challenges. The Home Officeaccepted in the Helen Bamber case in July 2015 that the Fast Track ‘created an unacceptable risk of unfairness to vulnerable or potentially vulnerable individuals’. It is not clear how DFT 2 can resolve this problem.

So we can expect Fast Track litigation to continue for the foreseeable future. Which brings on the second significant change: the Fast Track is now, and will remain, a problem. Politically, the Fast Track always did the job for the government, which in turn was ever keen to export its good practice to other states. By contrast, from now on ever lurking in the background will be the question of whether the Fast Track has become more trouble than it is worth.

In the short term, the Immigration Minister James Brokenshire has expressed his commitment to restarting the Fast Track, so there will be a high political priority on doing so. Having a Detained Fast Track is a significant strand of the Government’s asylum policy, and anxieties around Calais make it a difficult rhetorical device to abandon.

However, the likelihood is that any future Fast Track will be process fewer people, slower, and amidst much disruptive litigation. Once it was a hopeless task to make a plausible political case against the Fast Track to the government. Now, amidst austerity and cuts, and the closure of two detention centres this year, Dover and Haslar, how long can the problematic Fast Track justify itself? If community-based alternatives to detention can be shown to meet the government’s objectives of processing suitable asylum claims quickly, how long will it stay wedded to a detained process that is of little benefit?

Ultimately, this may be the strength and the weakness of public interest strategic litigation. In terms of politics, and notwithstanding the immense sophistication of the legal advocacy involved, litigation is a crude tool – rarely does it persuade government to abandon altogether something to which ministers are committed. Judgements stand still, while government is always moving, and can always find a different way of doing the same thing.

However, in a difficult and hostile political environment, crudeness is often required. The litigation of the last three years has battered down a door that was firmly bolted. It required a great deal of persistence, but also strategic nous – it was only when our inspired legal team hit upon targeting the legal framework that we were able to do lasting damage.

So the door is now open, not only to further legal challenges, but also campaigning, policy work and advocacy. The Fast Track is not over – the next battle is only just beginning, that of persuading the government that locking up asylum-seekers is unnecessary as well as unjust. A lasting victory, of a complete end to the Fast Track, will only be won on the battlefield of politics.

This article was initially written for, and published by, OpenDemocracy.